Thursday, January 17, 2013

You might think the Aurora Theater Shooter's psychiatrist is
partially to blame for the deaths of many innocent victims,
but that will be extremely hard to prove in court.

Dr. Lynne Fenton, the psychiatrist who treated the Aurora theater shooter for several months before he withdrew from the University of Colorado, has been sued. Chantel Blunk, the widow of one of the victims, sued Dr. Fenton, alleging she should have detained the shooter because she was aware of his dangerous tendencies.

Regardless of the merits of the case, this suit is going to be difficult for Ms. Blunk's attorney. In order to prove to a jury Dr. Fenton knew about the shooter's dangerousness and failed to act properly, the attorney is going to need access to the information that proves those allegations. In other words, the attorney will need the shooter's medical records.

But, that information is confidential and protected by law.

In the vast majority of malpractice lawsuits, the issue of confidentiality is moot. The law is clear: as soon as a patient sues his doctor, the patient waives legal privilege and the doctor is allowed to use the patient's medical records in his/her defense. The same is true if a family member of a patient sues a doctor--for example, if a son is convinced his mother's doctor killed her through a negligent act, he can sue the doctor and the deceased mother's medical records are no longer confidential for the purposes of the suit.

The reason for the existence of the above-mentioned laws is twofold. First, doctors need to defend themselves from lawsuits. If the records remained confidential, they would not be able to refute the charges in a public court. Second, when patients sue doctors, doctors may try to claim they cannot legally engage in the lawsuit because of doctor-patient confidentiality and thus, the lawsuit must be thrown out. By automatically waiving privilege, doctors are free to (and are forced to) defend themselves.

There is a catch in the case of Ms. Blunk's lawsuit against Dr. Fenton, though. Ms. Blunk's husband was not Dr. Fenton's patient. She is suing the doctor because a patient who has no relation to Ms. Blunk allegedly killed her husband. Ms. Blunk has no legal right to waive the theater shooter's privileged communication with his psychiatrist. Thus, Dr. Fenton's medical records are not automatically available for use in this case.

No doubt, Ms. Blunk's attorney will try to convince the judge that the theater shooter's records should be released. And, it is certain Dr. Fenton's lawyers will argue otherwise. It will be up to the judge to decide what is and is not released. And, if the medical records are not able to be entered into evidence, there will be very little for Ms. Blunk's attorney to use to prove her claim is legitimate.

One other potential catch to this case: the Aurora theater shooter may face a criminal trial in coming months. In that trial, Dr. Fenton may be compelled to testify (again, the judge in the criminal court must order her to testify and release records if the theater shooter does not give his consent). If she testifies in that trial, much of what she says and what is documented in the shooter's medical records may then become public.

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